The opinion of the court was delivered by
Lowrib, J.The rule in cases of this class is, that no one, who at the happening of the right of action on promissory notes, is a party in interest to the transaction, can, by transferring his interest to a mere volunteer, become a witness in the action in order to enforce the right.
The witness Justice appears to be in no way interested at present in the event of this suit, for the note is in the hands of a previous endorser.
The rule that excludes a party to a note from being a witness to invalidate it in the hands of the holder, does not apply to him, for it is the holder that calls him.
He is not excluded merely because an antecedent liable endorser has lifted the note after it became due; because in such an act, such an endorser is no volunteer, but does only what the law requires of him. There is no legal suspicion attached to such an act.
But here the note presents the appearance of having been due one year before there was any demand and notice; and therefore, according to the evidence, the prior endorser was discharged, and, in lifting the note, was a mere volunteer. By want of demand and notice, he ceased to be a party to the note, and his lifting it afterwards made him an assignee by his own act. He became a volunteer party after the dishonor of the note, and cannot use him who was then the only party in interest, as a witness.
It is said, however, that the witness held the note merely for collection. This may be true in fact; but the presumption of law is that the endorsee is the owner, and the rebutting of that presumption is necessary, in order to remove his apparent incompetency. But under such circumstances, the witness cannot testify to his own competency.
Judgment reversed and a new trial awarded.
Lewis, J., dissented.